01a00529
04-17-2000
Henry J. Mogilka, Complainant, v. Secretary, Department of Transportation, Agency.
Henry J. Mogilka, )
Complainant, )
)
v. ) Appeal No. 01A00529
) Agency No. 5995099 Rodney E.Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
On October 16, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on September 16,
1999, pertaining to his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and the Equal Pay Act of 1963, as amended,
29 U.S.C. � 206(d) et seq.<1> Pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405), the Commission accepts
the complainant's appeal from the agency's final decision in the
above-entitled matter.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
present complaint for failure to state a claim.
BACKGROUND
For the relevant period of time, complainant was employed by the
Department of Transportation as an Air Traffic Control Specialist,
FG-2152-14. Complainant stated that on June 15, 1999, he was informed
that Air Traffic Control Training Specialists, were being paid more
than he was despite the fact the they both perform the same duties.
Complainant further stated that this disparity in pay was due to the fact
that majority of the employees in the position of Air Traffic Control
Training Specialists are female.
Believing that he was the victim of unlawful employment discrimination,
on July 16, 1999, complainant initiated contact with an EEO Counselor.
During the counseling period, complainant stated that employees, in the
position of Air Traffic Control Training Specialists, most of which are
female, are being paid more than he is despite the fact they perform
the same duties.
Counseling failed, and on August 30, 1999, complainant filed a
formal complaint of discrimination on the basis of his gender (male).
The complaint was comprised of the matters for which complainant underwent
EEO counseling, discussed above.
On September 16, 1999, the agency issued a final decision dismissing
the present complaint for failure to state a claim. Therein, the agency
found that complainant's complaint set forth an allegation that was in
fact a generalized grievance and complainant did not demonstrate that he
suffered a personal harm with regards to the alleged action. As such,
his complaint failed to state a claim.
ANALYSIS AND FINDINGS
The Commission finds that complainant's complaint is a generalized
grievance and, therefore, fails to state a claim. Complainant failed
to identify a specific harm that he sustained. Complainant cannot
pursue a generalized grievance that members of one protected group
are afforded benefits not offered to other protected groups, unless he
further alleges some specific injury to him as a result of the alleged
discriminatory practice. See Warth v. Seldin, 422 U.S. 490, 499 (1975);
Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508
(September 11, 1997) (claim that nurse practitioners in one unit received
more favorable treatment than nurse practitioners in other units was a
generalized grievance); Rodriguez v. Department of the Treasury, EEOC
Appeal No. 01970736 (August 28, 1997) (claim that there was an imbalance
in favoring of African-Americans, against Hispanics, in development and
promotion opportunities was a generalized grievance purportedly shared
by all Hispanic co-workers and therefore failed to state a claim).
In this case, complainant has failed to demonstrate that he has in fact
suffered a harm unique to the protected class in which he is part of.
Accordingly, the agency's decision finding that the present complaint
fails to state a claim was proper.
CONCLUSION
For the reason set forth above, the Commission hereby AFFIRMS the decision
of the agency finding that the present complaint fails to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN
THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.